Pezzoni v. City & County of San Francisco

[124]

DOOLING, J.

Plaintiffs are husband and wife. The wife testified that she received injuries, on a streetcar operated by-defendant, by being thrown against the iron guardrail in front of the conductor while waiting to give him her transfer. She testified: “the streetcar started up and stopped and jerked and threw me against the iron railing,” “a sudden stop,” “stopped with a sudden jerk.”

The jury returned a verdict for defendant and following a timely motion the court granted a new trial “on the ground of errors of law occurring at the trial.” Defendant appeals from this order.

In support of the order plaintiffs enumerate nine alleged errors in the instructions of the court. We need only consider two of them.

It is conceded that the evidence supported instructions on res ipsa loquitur

(Mudrick

v.

Market Street Ry. Co.,

11 Cal.2d 724 [81 P.2d 950, 118 A.L.R. 533]) and the court gave such instructions. The court also instructed the jury that “the law presumes that the motorman and conductor . . . were using the requisite degree of care in the operation of such streetcar. This presumption is a species of proof . . . to which the defendant ... (is) entitled, unless and until it is overcome by contradictory evidence.” The jury was thus faced with the metaphysical responsibility of weighing a presumption of care against an inference of negligence. The courts have held that in a res ipsa case it is not proper to give an instruction on the presumption of care.

(Waite

v.

Pacific Gas & Elec. Co.,

56 Cal.App.2d 191 [132 P.2d 311];

Moeller

v.

Market Street Ry. Co.,

27 Cal.App.2d 562 [81 P.2d 475];